Problematic aspects of appealing procedural decisions, actions or inactions during preparatory court proceedings

The article examines problematic aspects of the regulatory and legal regulation of the mechanism for appealing procedural decisions, actions, or inaction of pre-trial investigation entities during preparatory court proceedings. It is argued that the institution of appeal is an important component of the realization of a person’s right to an effective remedy within the meaning of Article 13 of the Convention for the Protection of Human Rights and Fundamental Freedoms, as it provides for the possibility of judicial review of the legality and validity of the procedural activities of subjects of criminal proceedings. It is noted that despite the regulation of the possibility of court consideration of complaints against other decisions, actions, or inaction of an investigator, inquiry officer, or prosecutor during preparatory court proceedings that were not subject to consideration at the pre-trial investigation stage, the current criminal procedural legislation does not contain a clearly defined procedural mechanism for the implementation of such a right. It is noted that the absence in the Criminal Procedure Code of Ukraine of provisions on the grounds, conditions, time limits, and procedure for considering relevant complaints in preparatory proceedings indicates a violation of the requirement of legal certainty as an integral part of the principle of the rule of law. It is noted that the defectiveness of legislative norms leads to legal uncertainty, a formal approach, and restrictions on a person’s access to judicial protection of violated rights. It has been proven that the deferred nature of the court’s consideration of complaints in preparatory proceedings reduces the effectiveness of judicial protection, since the response to significant violations of rights, freedoms, and legitimate interests occurs after the completion of the pre-trial investigation, when their negative consequences become irreversible. It is noted that some cases from judicial practice indicate the impossibility of appealing due to the lack of an appropriate procedure, which effectively nullifies the guaranteed right to file a complaint during a preparatory hearing in court. It was analyzed that the absence of mandatory rules regarding the mandatory consideration of complaints by the court in preparatory proceedings contradicts the standard of an effective remedy. It was concluded that the existing mechanism for appealing during preparatory court proceedings is declarative in nature and does not ensure the actual restoration of violated rights. The urgent need to amend and supplement the criminal procedural law by regulating the grounds, conditions, and procedure for appealing procedural decisions, actions, or inaction of pre-trial investigation authorities during preparatory court proceedings in order to ensure effective judicial protection of human rights, freedoms, and legitimate interests is emphasized.